Social Media: No “Friend” of Personal Privacy by Christopher Spinelli — 61

in a physical or tangible sense. In other words, “the Fourth Amendment was not violated as long as there was no official search of a person, or his tangible, material effects.”9 Thus, establishing the trespass doctrine, which held that the Fourth Amendment is not implicated unless there is a physical intrusion, or trespass, into a private area such as an individual’s residence. In the landmark privacy case of Olmstead v. United States this doctrine was upheld in light of the advent of wiretapping technology. Recognizing the dangers this ruling posed to the Fourth Amendment in light of technological advances, Justice Brandeis authored a famous dis- sent, hinting at a new Fourth Amendment standard:

Time works changes, brings into existence new conditions and purposes. Subtler and more far-reaching means of invading privacy have become available… Discovery and invention have made it possible… by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. Advances in the psychic and related sci- ences may bring means of exploring unexpressed beliefs, thoughts and emotions. Can it be that the Constitution affords no protection against such invasions of individual security?10

Justice Brandeis’ words emphasize the dangers that the advancement of technology poses to indi- vidual privacy. His view was ultimately vindicated nearly 40 years later in Katz.

Fearful of the limited protection that a trespass standard provided, Katz adopted a two-step approach to determine the legality of Fourth Amendment searches and seizures. Justice Harlan explained in his concur- ring opinion: “there is a twofold requirement, first, that a person have exhibited an actual expectation of pri- vacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”11 Thus, Harlan established the modern Fourth Amendment standard for a search: an invasion of a zone of which a person has a reasonable expectation of privacy

In regards to this discussion, the question then becomes, “how is this construction of the Fourth Amendment then applied to an intangible medium such as a social networking website?” To date, the Su- preme Court has yet to consider this question. Therefore, the lower courts are forced to draw analogies to Supreme Court rulings dealing with situations outside of cyberspace.

Some courts have expressed their discontent with this approach. For instance, in United States v. Walser the Tenth Circuit Judge Stephanie Seymour stated, “[t]he advent of the electronic age and . . . the development of desktop computers . . . go beyond the established categories of constitutional doctrine. Analo- gies to other physical objects, such as dressers or file cabinets, do not often inform the situations we now face as judges when applying search and seizure law.”12 Yet, the fact remains that lower courts are forced to connect expectations of privacy on the Internet with the provisions outlined in Katz. In doing so, they have relied largely on Smith v. Maryland and United States v. Miller. In Smith, the Court ruled that the installation of a pen register did not constitute a search that would breach the defendant’s reasonable expectation of privacy.13 For clarification, “A pen register is a device installed by the telephone company which can track the phone numbers of all calls outgoing from a person’s house.”14 Therefore, since the numbers are automatically shared with a third party, the telephone company, an individual cannot reasonably expect this information to be private.

In Miller, the Court ruled that a person does not have a reasonable expectation of privacy over his bank records. In delivering the majority opinion Justice Powell stated, “documents subpoenaed are not [Miller’s] ‘private papers’, but instead, part of the bank’s business records.” Therefore, “Miller’s rights were not violated when a third party - his bank - transmitted information that he had entrusted them with to the government.”15

In most respects, the decisions handed down in both Smith and Miller permit the government to, with- 9 See Olmstead v. United States, 277 U.S. 438, 466 (1928).

10 Id. at 472-73 (“Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world.”) Id at 472 (Brandeis, J., dissenting).